EXHIBIT 10.59
INDUSTRIAL REAL ESTATE LEASE
(SINGLE-TENANT FACILITY)
ARTICLE ONE: BASIC TERMS
This Article One contains the Basic Terms of this Lease between the
Landlord and Tenant named below. Other Articles, Sections and Paragraphs of
the Lease referred to in this Article One explain and define the Basic Terms
and are to be read in conjunction with the Basic Terms.
Section 1.01. Date of Lease: February 28, 2003
Section 1.02. Landlord (include legal entity): Maintenance Warehouse/
America Corp., a Texas corporation
Address of Landlord: 00000 Xxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, XX 00000
Attn: Property Services
Section 1.03. Tenant (include legal entity): Xxxxxxxxxx Laboratories,
Inc., a Texas corporation
Address of Tenant: The Premises
Section 1.04. Property: (include street address, approximate square
footage and description). An approximately 58,133 sq. ft. building
("Building") and the land and improvements associated therewith commonly
known as 0000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxx
Section 1.05. Lease Term: Five (5) years two (2) months beginning on
SEE ADDENDUM or such other date as is specified in this Lease, and ending on
SEE ADDENDUM
Section 1.06. Permitted Uses: (See Article Five) Warehousing and
storage of medical, nutritional, cosmetic and skin care related products,
office use, and related light assembly.
Section 1.07. Tenant's Guarantor: (If none, so state) None
Section 1.08. Brokers: (See Article Fourteen) (If none, so state)
Landlord's Broker: CB Xxxxxxx Xxxxx, Inc.
Tenant's Broker: Xxxxxx Xxxx Company
Section 1.09. [Reserved]
Section 1.10. Security Deposit: (See Section 3.03) $25,000
Section 1.11. Vehicle Parking Spaces Allocated to Tenant:
All associated with the Building
Section 1.12. Rent and Other Charges Payable by Tenant:
(a) BASE RENT: Sixteen Thousand Two Hundred Twenty-Eight and 80/100
Dollars ($16,228.80) per month
(b) OTHER PERIODIC PAYMENTS: (i) Real Property Taxes (See
Section 4.02); (ii) Utilities (See Section 4.03); (iii) Insurance Premiums
(See Section 4.04); (iv) Impounds for Insurance Premiums and Property Taxes
(See Section 4.07); (v) Maintenance, Repairs and Alterations (See Article
Six).
Section 1.13. Landlord's Share of Profit on Assignment or Sublease:
(See Section 9.05) fifty percent (50%) of the Profit (the "Landlord's
Share").
Section 1.14. Addendum: The following Addendum is attached to and
made a part of this Lease: Addendum containing paragraphs 15 through 18
ARTICLE TWO: LEASE TERM
Section 2.01. Lease of Property For Lease Term. Landlord leases the
Property to Tenant and Tenant leases the Property from Landlord for the
Lease Term. The Lease Term is for the period stated in Section 1.05 above
and shall begin and end on the dates specified in Section 1.05 above, unless
the beginning or end of the Lease Term is changed under any provision of
this Lease. The "Commencement Date" shall be the date specified in Section
1.05 above for the beginning of the Lease Term, unless advanced or delayed
under any provision of this Lease. Rent for partial periods of a month
shall be prorated accordingly.
Section 2.02. [Reserved]
Section 2.03. Early Occupancy. If Tenant occupies the Property prior
to the Commencement Date Tenant's occupancy of the Property shall be subject
to all of the provisions of this Lease. Early occupancy of the Property
shall not advance the expiration date of this Lease. Tenant shall pay Base
Rent and all other charges specified in this Lease for the early occupancy
period (prorated for partial months).
Section 2.04. Holding Over. Tenant shall vacate the Property upon the
expiration or earlier termination of this Lease. Tenant shall reimburse
Landlord for and indemnify Landlord against all damages which Landlord
incurs from Tenant's delay in vacating the Property by more than five (5)
days. If Tenant does not vacate the Property upon the expiration or
earlier termination of the Lease and Landlord thereafter accepts rent from
Tenant, Tenant's occupancy of the Property shall be a "month-to-month"
tenancy, subject to all of the terms of this Lease applicable to a month-
to-month tenancy, except that the Base Rent then in effect shall be
increased by fifty percent (50%).
ARTICLE THREE: BASE RENT
Section 3.01. Time and Manner of Payment. Upon execution of this Lease,
Tenant shall pay Landlord the Base Rent in the amount stated in Paragraph
1.12(a) above for the first month of the Lease Term. On the first day of the
second month of the Lease Term and each month thereafter, Tenant shall pay
Landlord the Base Rent, in advance, without offset, deduction, or prior
demand. The Base Rent shall be payable at Landlord's address or at such
other place as Landlord may designate in writing.
Section 3.02. [Reserved]
Section 3.03. Security Deposit.
Upon the execution of this Lease, Tenant shall deposit with Landlord a
cash Security Deposit in the amount set forth in Section 1.10 above.
Landlord may apply all or part of the Security Deposit to any unpaid rent or
other charges due from Tenant or to cure any other defaults of Tenant. If
Landlord uses any part of the Security Deposit, Tenant shall restore the
Security Deposit to its full amount within ten (10) days after Landlord's
written request. Tenant's failure to do so after written notice shall be a
material default under this Lease. No interest shall be paid on the
Security Deposit. Landlord shall not be required to keep the Security
Deposit separate from its other accounts and no trust relationship is
created with respect to the Security Deposit.
Section 3.04. Termination; Advance Payments. Upon termination of
this Lease under Article Seven (Damage or Destruction), Article Eight
(Condemnation) or any other termination not resulting from Tenant's default,
and after Tenant has vacated the Property in the manner required by this
Lease, Landlord shall, within twenty (20) days, refund or credit to Tenant
(or Tenant's successor) the unused portion of the Security Deposit, any
advance rent or other advance payments made by Tenant to Landlord, and any
amounts paid for real property taxes and other reserves which apply to any
time periods after termination of the Lease.
ARTICLE FOUR: OTHER CHARGES PAYABLE BY TENANT
Section 4.01. Additional Rent. All charges payable by Tenant other
than Base Rent are called "Additional Rent." Unless this Lease provides
otherwise, Tenant shall pay all Additional Rent then due with the next
monthly installment of Base Rent. The term "rent" shall mean Base Rent and
Additional Rent.
Section 4.02. Property Taxes.
(a) Real Property Taxes. Tenant shall pay all real property taxes on
the Property (including any fees, taxes or assessments against, or as a
result of, any tenant improvements installed on the Property by or for the
benefit of Tenant) during the Lease Term, prorated for any partial years.
Subject to Paragraph 4.02(c) and Section 4.07 below, such payment shall be
made at least ten (10) days prior to the delinquency date of the taxes.
Within such ten (10) day period, Tenant shall furnish Landlord with
satisfactory evidence that the real property taxes have been paid. Landlord
shall reimburse Tenant for any real property taxes paid by Tenant covering
any period of time prior to or after the Lease Term. If Tenant fails to pay
the real property taxes when due, Landlord may pay the taxes and Tenant
shall reimburse Landlord for the amount of such tax payment as Additional
Rent.
(b) Definition of "Real Property Tax." "Real property tax" means:
(i) any fee, license fee, license tax, business license fee, commercial
rental tax, levy, charge, assessment, penalty, or tax imposed by any taxing
authority against the Property applicable to any period of time after the
Commencement Date; (ii) any tax on the Landlord's right to receive, or the
receipt of, rent or income from the Property or against Landlord's business
of leasing the Property; (iii) any tax or charge for fire protection,
streets, sidewalks, road maintenance, refuse or other services provided to
the Property by any governmental agency applicable to any period of time
after the Commencement Date; (iv) any tax imposed upon this transaction or
based upon a reassessment of the Property due to a change of ownership, as
defined by applicable law, or other transfer of all or part of Landlord's
interest in the Property; and (v) any charge or fee replacing any tax
previously included within the definition of real property tax. "Real
property tax" does not, however, include Landlord's federal or state income,
franchise, inheritance, or estate taxes.
(c) Joint Assessment. If the Property is not separately assessed,
Landlord shall reasonably determine Tenant's share of the real property tax
payable by Tenant under Paragraph 4.02(a) from the assessor's worksheets or
other reasonably available information. Tenant shall pay such share to
Landlord within fifteen (15) days after receipt of Landlord's written
statement.
(d) Personal Property Taxes.
(i) Tenant shall pay all taxes charged against trade fixtures,
furnishings, equipment or any other personal property belonging to Tenant.
Tenant shall try to have personal property taxed separately from the
Property.
(ii) If any of Tenant's personal property is taxed with the Property,
Tenant shall pay Landlord the taxes for the personal property within fifteen
(15) days after Tenant receives a written statement from Landlord for such
personal property taxes.
(e) Tenant's Right to Contest Taxes. Tenant may attempt to have the
assessed valuation of the Property reduced or may initiate proceedings to
contest the real property taxes. If required by law, Landlord shall join in
the proceedings brought by Tenant. However, Tenant shall pay all costs of
the proceedings, including any reasonable costs or fees incurred by
Landlord. Upon the final determination of any proceeding or contest, Tenant
shall immediately pay the real property taxes due, together with all costs,
charges, interest and penalties incidental to the proceedings. If Tenant
does not pay the real property taxes when due and contests such taxes,
Tenant shall not be in default under this Lease for nonpayment of such taxes
if Tenant deposits funds with Landlord or opens an interest-bearing account
reasonably acceptable to Landlord in the joint names of Landlord and Tenant.
The amount of such deposit shall be sufficient to pay the real property
taxes plus a reasonable estimate of the interest, costs, charges and
penalties which may accrue if Tenant's action is unsuccessful, less any
applicable tax impounds previously paid by Tenant to Landlord. The deposit
shall be applied to the real property taxes due, as determined at such
proceedings. The real property taxes shall be paid under protest from such
deposit if such payment under protest is necessary to prevent the Property
from being sold under a "tax sale" or similar enforcement proceeding.
Section 4.03. Utilities. Tenant shall pay, directly to the appropriate
supplier, the cost of all natural gas, heat, light, power, sewer service,
telephone, water, refuse disposal, and other utilities and services supplied
to the Property. However, if any services or utilities are jointly metered
with other property, Landlord shall make a reasonable determination of
Tenant's proportionate share of the cost of such utilities and services and
Tenant shall pay such share to Landlord within fifteen (15) days after
receipt of Landlord's written statement.
Section 4.04. Insurance Policies.
(a) Liability Insurance. During the Lease Term, Tenant shall maintain
a policy of commercial general liability insurance (sometimes known as broad
form comprehensive general liability insurance) insuring Tenant against
liability for bodily injury, property damage (including loss of use of
property) and personal injury arising out of the operation, use or occupancy
of the Property. Tenant shall name Landlord and Landlord's property
manager, if any, as an additional insured under such policy. The initial
amount of such insurance shall be Two Million Dollars ($2,000,000) per
occurrence. The liability insurance obtained by Tenant under this
Paragraph 4.04(a) shall (i) be primary and non-contributing; (ii) contain
cross-liability endorsements; and (iii) insure Landlord and Landlord's
property manager, if any, against Tenant's performance under Section 5.05,
if the matters giving rise to the indemnity under Section 5.05 result from
the negligence of Tenant. The amount and coverage of such insurance shall
not limit Tenant's liability nor relieve Tenant of any other obligation
under this Lease. Landlord may also obtain comprehensive public liability
insurance in an amount and with coverage determined by Landlord insuring
Landlord against liability arising out of ownership, operation, use or
occupancy of the Property. The policy obtained by Landlord shall not be
contributory and shall not provide primary insurance.
(b) Property Insurance. During the Lease Term, Landlord shall maintain
policies of insurance covering loss of or damage to the Property in the full
amount of its replacement value. Such policy shall contain an Inflation
Guard Endorsement and shall provide protection against all perils included
within the classification of fire, extended coverage, vandalism, malicious
mischief, special extended perils (all risk), sprinkler leakage and any
other perils which Landlord deems reasonably necessary. Landlord shall have
the right to obtain flood and earthquake insurance if required by any lender
holding a security interest in the Property, and if applicable. Landlord
shall not obtain insurance for Tenant's fixtures or equipment or building
improvements installed by Tenant on the Property. Tenant shall be liable
for the payment of any deductible amount under Landlord's or Tenant's
insurance policies maintained pursuant to this Section 4.04, in an amount
not to exceed Ten Thousand Dollars ($10,000) with respect to any insurance
carried by Landlord. Tenant shall not do or permit anything to be done
which invalidates any such insurance policies.
(c) Payment of Premiums. Subject to Section 4.07, Tenant shall pay all
premiums for the insurance policies described in Paragraphs 4.04(a) and (b)
(whether obtained by Landlord or Tenant) within fifteen (15) days after
Tenant's receipt of a copy of the premium statement or other evidence of the
amount due, except Landlord shall pay all premiums for non-primary
comprehensive public liability insurance which Landlord elects to obtain as
provided in Paragraph 4.04(a). If insurance policies maintained by Landlord
cover improvements on real property other than the Property, Landlord shall
deliver to Tenant a statement of the premium applicable to the Property
showing in reasonable detail how Tenant's share of the premium was computed.
If the Lease Term commences after the inception or expires before the
expiration of an insurance policy maintained by Landlord, Tenant shall be
liable for Tenant's prorated share of the insurance premiums. Before the
Commencement Date, Tenant shall deliver to Landlord a copy of any policy of
insurance which Tenant is required to maintain under this Section 4.04. At
least thirty (30) days prior to the expiration of any such policy, Tenant
shall deliver to Landlord a renewal of such policy. As an alternative to
providing a policy of insurance, Tenant shall have the right to provide
Landlord a certificate of insurance, executed by an authorized officer of
the insurance company, showing that the insurance which Tenant is required
to maintain under this Section 4.04 is in full force and effect and
containing such other information which Landlord reasonably requires.
(d) General Insurance Provisions.
(i) Any insurance which Tenant is required to maintain under this
Lease shall include a provision which requires the insurance carrier to give
Landlord not less than thirty (30) days' written notice prior to any
cancellation or modification of such coverage.
(ii) If Tenant fails to deliver any policy, certificate, or renewal to
Landlord required under this Lease within the prescribed time period or if
any such policy is cancelled or modified during the Lease Term without
Landlord's consent, Landlord may obtain such insurance, in which case Tenant
shall reimburse Landlord for the cost of such insurance within fifteen (15)
days after receipt of a statement that indicates the cost of such insurance.
(iii) Tenant shall maintain all insurance required under this Lease
with companies holding a "General Policy Rating" of A-12 or better, as set
forth in the most current issue of "Best Key Rating Guide". Landlord and
Tenant acknowledge the insurance markets are rapidly changing and that
insurance in the form and amounts described in this Section 4.04 may not be
available in the future. Tenant acknowledges that the insurance described
in this Section 4.04 is for the intended primary benefit of Landlord, and
Landlord's property manager. If at any time during the Lease Term, Tenant
is unable to maintain the insurance required under the Lease, Tenant shall
nevertheless maintain insurance coverage which is customary and commercially
reasonable in the insurance industry for Tenant's type of business, as that
coverage may change from time to time. Landlord makes no representation as
to the adequacy of such insurance to protect Landlord's or Tenant's
interests. Therefore, Tenant shall obtain any such additional property or
liability insurance which Tenant deems necessary to protect Landlord and
Tenant.
(iv) Unless prohibited under any applicable insurance policies
maintained, Landlord and Tenant each hereby waive any and all rights of
recovery against the other, or against the officers, employees, agents or
representatives of the other, including without limitation property manager
for loss of or damage to its property or the property of others under its
control, if such loss or damage is covered by any insurance policy in force
(whether or not described in this Lease) at the time of such loss or damage.
Upon obtaining the required policies of insurance, Landlord and Tenant shall
give notice to the insurance carriers of this mutual waiver of subrogation.
Section 4.05. Late Charges. Tenant's failure to pay rent promptly may
cause Landlord to incur unanticipated costs. The exact amount of such costs
are impractical or extremely difficult to ascertain. Such costs may include,
but are not limited to, processing and accounting charges and late charges
which may be imposed on Landlord by any ground lease, mortgage or trust deed
encumbering the Property. Therefore, if Landlord does not receive any rent
payment within ten (10) days after it becomes due, Tenant shall pay Landlord
a late charge equal to five percent (5%) of the overdue amount. The parties
agree that such late charge represents a fair and reasonable estimate of the
costs Landlord will incur by reason of such late payment.
Section 4.06. Interest on Past Due Obligations. Any amount owed by
Tenant to Landlord which is not paid when due shall bear interest at the
rate of ten percent (10%) per annum from the due date of such amount.
However, interest shall not be payable on late charges to be paid by Tenant
under this Lease. The payment of interest on such amounts shall not excuse
or cure any default by Tenant under this Lease. If the interest rate
specified in this Lease is higher than the rate permitted by law, the
interest rate is hereby decreased to the maximum legal interest rate
permitted by law.
Section 4.07. Impounds for Maintenance Costs, Insurance Premiums and
Real Property Taxes. If requested by Landlord, Tenant shall pay Landlord a
sum equal to one-twelfth (1/12) of the annual Landlord Maintenance Costs (as
defined in and subject to Section 6.03 below), real property taxes and
insurance premiums payable by Tenant under this Lease, together with each
payment of Base Rent. Landlord shall hold such payments in a non-interest
bearing impound account. If unknown, Landlord shall reasonably estimate the
amount of Landlord Maintenance Costs, real property taxes and insurance
premiums when due. Tenant shall pay any deficiency of funds in the impound
account to Landlord upon written request. If Tenant defaults under this
Lease, Landlord may apply any funds in the impound account to any obligation
then due under this Lease.
ARTICLE FIVE: USE OF PROPERTY
Section 5.01. Permitted Uses. Tenant may use the Property only for the
Permitted Uses set forth in Section 1.06 above.
Section 5.02. Manner of Use. Tenant shall not cause or permit the
Property to be used in any way which constitutes a violation of any law,
ordinance, or governmental regulation or order, which annoys or interferes
with the rights of other tenants of Landlord, or which constitutes a
nuisance or waste. Tenant shall obtain and pay for all permits, including a
Certificate of Occupancy, required for Tenant's occupancy of the Property
and shall promptly take all actions necessary to comply with all
applicable covenants, conditions, restrictions, statutes, ordinances, rules,
regulations, orders and requirements regulating the use by Tenant of the
Property, including the Occupational Safety and Health Act. Subject to the
foregoing, Landlord has no objection to Tenant utilizing the Property on a
twenty-four hour a day, seven day a week basis.
Section 5.03. Hazardous Materials. As used in this Lease, the term
"Hazardous Material" means any flammable items, explosives, radioactive
materials, hazardous or toxic substances, material or waste or related
materials, including any substances defined as or included in the definition
of "hazardous substances", "hazardous wastes", "hazardous materials" or
"toxic substances" now or subsequently regulated under any applicable
federal, state or local laws or regulations, including without limitation
petroleum-based products, paints, solvents, lead, cyanide, DDT, printing
inks, acids, pesticides, ammonia compounds, and other chemical products,
asbestos, PCBs and similar compounds, and including any different products
and materials which are subsequently found to have adverse effects on the
environment or the health and safety of persons. Tenant shall not cause or
permit any Hazardous Material to be generated, produced, brought upon, used,
stored treated or disposed of in or about the Property by Tenant its agents,
employees, contractors, sublessees or invitees without the prior written
consent of Landlord. Landlord shall be entitled to take into account such
other factors or facts as Landlord may reasonably determine to be relevant
in determining whether to grant or withhold consent to Tenant's proposed
activity with respect to Hazardous Material. Notwithstanding the foregoing,
Tenant may, without Landlord's consent, bring upon, use and store Hazardous
Materials on the Property and dispose of Hazardous Materials from and off of
the Property in connection with Tenant's normal business operations for the
Permitted Use, in pre-packaged and sealed household consumer-size
containers, provided Tenant does so in strict accordance with all applicable
laws, statutes, ordinances and other governmental or quasi-governmental
rules, regulations and orders relating to Hazardous Materials. In no event,
however, shall Landlord be required to consent to the installation or use of
any storage tanks on the Property.
Section 5.04. Signs and Auctions. Tenant shall not place any signs
on the Property without Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed and shall be conditioned upon,
among other reasonable conditions, such signs complying with all laws and
covenants and restrictions of record. Tenant shall not conduct or permit
any auctions or sheriff's sales at the Property.
Section 5.05. Indemnity By Tenant. Tenant shall indemnify Landlord
against and hold Landlord harmless from any and all costs, claims or
liability arising from: (a) Tenant's use of the Property; (b) the conduct of
Tenant's business or anything else done or permitted by Tenant to be done in
or about the Property, including any contamination of the Property or any
other property resulting from the presence, treatment, production, disposal
or use of Hazardous Material caused by Tenant or its subtenants or the
agents, employees or contractors of any of them; (c) any breach or default
in the performance of Tenant's obligations under this Lease; (d) any
misrepresentation or breach of warranty by Tenant under this Lease; or
(e) the negligent or willful misconduct of Tenant or its subtenants or the
agents, employees or contractors of any of them. Tenant shall defend
Landlord against any such cost, claim or liability at Tenant's expense with
counsel reasonably acceptable to Landlord or, at Landlord's election, Tenant
shall reimburse Landlord for any legal fees or costs incurred by Landlord in
connection with any such claim. As a material part of the consideration to
Landlord, Tenant assumes all risk of damage to property or injury to persons
in or about the Property arising from any cause, and Tenant hereby waives
all claims in respect thereof against Landlord, except for any claim arising
out of Landlord's negligence or willful misconduct. As used in this
Section, the term "Tenant" shall include Tenant's employees, agents,
contractors and invitees, if applicable.
Section 5.06. Landlord's Access. Landlord or its agents may enter the
Property at all reasonable times to show the Property to potential buyers,
investors, or tenants, or other parties; to do any other act or to inspect
and conduct tests in order to monitor Tenant's compliance with all
applicable environmental laws and all laws governing the presence and use of
Hazardous Material; or for any other purpose Landlord deems reasonably
necessary, provided it does not adversely affect Tenant's use of Property in
a material manner. Landlord shall give Tenant prior notice of such entry,
except in the case of an emergency. Landlord may place customary "For Sale"
or "For Lease" ("For Lease" only during last six (6) months of the Term)
signs on the Property.
Section 5.07. Quiet Possession. If Tenant pays the rent and complies
with all other terms of this Lease, Tenant may occupy and enjoy the Property
for the full Lease Term, subject to the provisions of this Lease, without
hindrance or molestation by Landlord.
Section 5.08. Indemnity By Landlord. Subject to Section 13.02(c) below,
Landlord shall indemnify Tenant against and hold Tenant harmless from any
and all costs, claims or liability arising from: (a) any contamination of
the Property or any other property resulting from the presence, treatment,
production, disposal or use of Hazardous Material caused by Landlord or its
agents, employees or contractors; (b) any breach or default in the
performance of Landlord's obligations under this Lease; (c) any
misrepresentation or breach of warranty by Landlord under this Lease; or
(d) the negligent or willful misconduct of Landlord or its agents, employees
or contractors. Landlord shall defend Tenant against any such cost, claim
or liability at Landlord's expense with counsel reasonably acceptable to
Tenant or, at Tenant's election, Landlord shall reimburse Tenant for any
legal fees or costs incurred by Tenant in connection with any such claim.
ARTICLE SIX: CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND ALTERATIONS
Section 6.01. Existing Conditions. Except as otherwise expressly
provided in this Lease, Tenant accepts the Property in its "AS-IS" condition
as of the execution of the Lease, subject to all recorded matters, laws,
ordinances, and governmental regulations and orders. Except as otherwise
expressly provided herein, Tenant acknowledges that neither Landlord nor any
agent of Landlord has made any representation as to the condition of the
Property or the suitability of the Property for Tenant's intended use.
Except as otherwise expressly provided in this Lease, Tenant represents and
warrants that Tenant has made its own inspection of and inquiry regarding
the condition of the Property and is not relying on any representations of
Landlord or any Broker with respect thereto. Notwithstanding the foregoing,
Landlord represents and warrants to Tenant that, as of the Commencement
Date, to Landlord's knowledge:
(a) there are no Hazardous Materials on the Property in excess of legal
limits;
(b) the Property is in good working condition and order consistent with
its age and normal wear and tear, subject to patent defects; and
(c) the Property is not in violation of any applicable laws or
governmental regulations (including ADA and any private restrictive
covenants).
The foregoing shall not be applicable to the extent a breach by
Landlord of any such representation or warranty is attributable to Tenant's
use of the Property or any alterations made to the Property made by Tenant.
Notwithstanding anything to the contrary contained in this Lease, Tenant's
remedy for a breach by Landlord of any of the foregoing representations and
warranties shall be limited to requiring Landlord, at Landlord's sole cost,
to cure the condition giving rise to such breach. The phrase "to Landlord's
knowledge" means the current, actual knowledge of Xxxx Xxxxxx, Director,
Real Estate and Support Services for Landlord, without independent
investigation or inquiry.
Section 6.02. Exemption of Landlord from Liability. Landlord shall not
be liable for any damage or injury to the person, business (or any loss of
income therefrom), goods, wares, merchandise, or other property of Tenant,
Tenant's employees, invitees, customers or any other person in or about the
Property, whether such damage or injury is caused by or results from:
(a) fire, steam, electricity, water, gas or rain; not relating to the
negligence of Landlord; (b) the breakage, leakage, obstruction or other
defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning
or lighting fixtures or any other cause not relating to the negligence of
Landlord; (c) conditions arising in or about the Property or upon other
portions of the Project, or from other sources or places not relating to the
negligence of Landlord; or (d) any act or omission of any other tenant of
the Project. The provisions of this Section 6.02 shall not, however, exempt
Landlord from liability for Landlord's negligence or willful misconduct.
Section 6.03. Landlord's Obligations. Subject to the provisions of
Article Seven (Damage or Destruction) and Article Eight (Condemnation),
Landlord shall be responsible for keeping the structural components of the
Building in usable condition and repair, at Landlord's sole expense.
Notwithstanding the foregoing, all repairs to the structural components of
the Building which are required because of the misuse or neglect of Tenant
or its subtenants or the agents, employees or contractors of any of them
shall be undertaken by Landlord at Tenant's sole expense, or, at Landlord's
election, by Tenant at Tenant's sole expense. Further subject to the
provisions of Article Seven (Damage or Destruction) and Article Eight
(Condemnation), Landlord shall be responsible for, at the expense
of Tenant, maintaining and repairing the nonstructural roof and roof
membrane, parking areas, landscape areas and truck courtyards, and
the exterior surfaces of the exterior walls of the Building ("Landlord
Maintenance Items"). The costs incurred by Landlord in connection with
the Landlord Maintenance Items, including a reasonable management fee
not to exceed four percent (4%) of such costs, shall be referred to
herein as the "Landlord Maintenance Costs." If, for reason other than
the misuse or neglect of Tenant or its subtenants or the agents employees
or contractors of any of them, the nonstructural roof, roof membrane,
parking areas or truck courtyards need to be replaced, or the exterior
of the entire Building needs to be repainted (as opposed to general
repair and maintenance efforts), then Landlord shall undertake same at
Landlord's sole expense. The word "replaced," as used in the immediately
preceding sentence, shall include repair costs which are of such a nature
that, under generally accepted accounting principles, they should be treated
as capital expenditures. Except as set forth in this Section 6.03, Landlord
shall have absolutely no responsibility to repair, maintain or replace any
portion of the Property at any time. Tenant waives the benefit of any
present or future law which might give Tenant the right to repair the
Property at Landlord's expense or to terminate the Lease due to the
condition of the Property.
Section 6.04. Tenant's Obligations.
(a) Except as provided in Article Seven (Damage or Destruction) and
Article Eight (Condemnation) and in Section 6.03, Tenant shall keep all
nonstructural portions of the Property (including interior, exterior,
loading areas, systems, doors, windows and equipment) in good order,
condition, and repair (including interior repainting and refinishing, as
needed). Subject to Landlord's obligations under Section 6.03 above, if any
portion of the Property or any system or equipment in the Property which
Tenant is obligated to repair cannot be fully repaired or restored, Tenant
shall promptly replace such portion of the Property or system or equipment
in the Property, regardless of whether the benefit of such replacement
extends beyond the Lease Term; but if the benefit or useful life of such
replacement extends beyond the Lease Term (as such term may be extended by
exercise of any options), the useful life of such replacement shall be
prorated over the remaining portion of the Lease Term (as extended), and
Tenant shall be liable only for that portion of the cost which is applicable
to the Lease Term (as extended). Tenant shall maintain a preventive
maintenance contract providing for the regular inspection and maintenance of
the heating and air conditioning system by a licensed and appropriate
contractor. If any part of the Property is damaged by any act or omission
of Tenant, Tenant shall pay Landlord the cost of repairing or replacing such
damaged property, whether or not Landlord would otherwise be obligated to
pay the cost of maintaining or repairing such property. It is the intention
of Landlord and Tenant that at all times Tenant and Landlord shall maintain
the portions of the Property which they are respectively obligated under
this Lease to maintain in an attractive, good and fully operative condition.
(b) Tenant shall fulfill all of Tenant's obligations under this
Section 6.04 at Tenant's sole expense. If Tenant fails to maintain, repair
or replace the Property as required by this Section 6.04, including the
items described in Section 6.04(c), Landlord may, upon ten (10) business
days' prior written notice to Tenant (unless the failure is cured within
such 10 business day period and except that no notice shall be required in
the case of an emergency), enter the Property and perform such maintenance
or repair (including replacement, as needed) on behalf of Tenant. In such
case, Tenant shall reimburse Landlord for all costs reasonably incurred in
performing such maintenance or repair immediately upon demand.
Notwithstanding the foregoing, Tenant shall not have a 10 business day
opportunity to cure with respect to the third and subsequent noticed
failures by Tenant in any 12 consecutive month period relative to any
substantially similar failure by Tenant.
(c) Tenant may request in writing to Landlord that Tenant undertake
responsibility for portions of Landlord's Maintenance Items at Tenant's
expense, other than the non-structural roof and roof membrane. Landlord's
consent of a transfer of responsibility shall not be unreasonably withheld,
however, Landlord may condition said approval on Landlord being satisfied
(i) with the quality of and insurance coverage provided by Tenant's proposed
contractor, and (ii) that Tenant will adhere to the standards of repair and
maintenance which would have been provided by Landlord, and Landlord may
upon notice to Tenant take back such responsibilities upon any failure of
such conditions. Tenant shall be responsible for all fines, citations,
penalties, costs and expenses incurred by Landlord and arising out of
Tenant's undertaking pursuant to this Section 6.04(c) and Tenant hereby
holds Landlord harmless therefrom.
Section 6.05. Alterations, Additions, and Improvements.
(a) Tenant shall not make any alterations, additions, or improvements
to the Property without Landlord's prior written consent (not to be
unreasonably withheld, delayed or conditioned), except for non-structural
alterations which do not exceed Fifty Thousand Dollars ($50,000) in cost
cumulatively over the Lease Term and which are not visible from the outside
of any building of which the Property is part. Landlord may require Tenant
to provide demolition and/or lien and completion bonds in form and amount
reasonably satisfactory to Landlord. Tenant shall promptly remove any
alterations, additions, or improvements constructed in violation of this
Paragraph 6.05(a) upon Landlord's written request. All alterations,
additions, and improvements shall be done in a good and workmanlike manner,
in conformity with all applicable laws and regulations, and by a contractor
reasonably approved by Landlord. Upon completion of any such work requiring
Landlord's consent, Tenant shall provide Landlord with "as built" plans,
copies of all construction contracts, and proof of payment for all labor and
materials.
(b) Tenant shall pay when due all claims for labor and material
furnished to the Property. Tenant shall give Landlord at least twenty (20)
days' prior written notice of the commencement of any work on the Property
requiring Landlord's consent. Landlord may elect to record and post notices
of non-responsibility on the Property.
Section 6.06. Condition upon Termination. Upon the termination of the
Lease, Tenant shall surrender the Property to Landlord, broom clean and in
the same condition as received except for ordinary wear and tear which
Tenant was not otherwise obligated to remedy under any provision of this
Lease and casualty. However, Tenant shall not be obligated to repair any
damage which Landlord is required to repair under Article Seven (Damage or
Destruction). In addition, Landlord may require Tenant to remove any
alterations, additions or improvements (whether or not made with Landlord's
consent) prior to the expiration of the Lease and to restore the Property to
its prior condition except for ordinary wear and tear and casualty, all
at Tenant's expense. All alterations, additions and improvements which
Landlord has not required Tenant to remove shall become Landlord's property
and shall be surrendered to Landlord upon the expiration or earlier
termination of the Lease, except that Tenant may remove any of Tenant's
machinery or equipment or fixtures which can be removed without material
damage to the Property. Tenant shall repair, at Tenant's expense, any
damage to the Property caused by the removal of any such machinery or
equipment or fixtures. In no event, however, shall Tenant remove any of the
following materials or equipment (which shall be deemed Landlord's property)
without Landlord's prior written consent: any power wiring or power panels;
lighting or lighting fixtures; wall coverings; drapes, blinds or other
window coverings; carpets or other floor coverings; heaters, air
conditioners or any other heating or air conditioning equipment; fencing or
security gates; or other similar building operating equipment.
ARTICLE SEVEN: DAMAGE OR DESTRUCTION
Section 7.01. Partial Damage to Property.
(a) Tenant shall notify Landlord in writing immediately upon the
occurrence of any material damage to the Property. If the Property is only
partially damaged (i.e., less than fifty percent (50%) of the Property is
untenantable as a result of such damage or less than fifty percent (50%) of
Tenant's operations are materially impaired) and if the proceeds received by
Landlord from the insurance policies described in Paragraph 4.04(b) are
sufficient to pay for the necessary repairs, this Lease shall remain in
effect and Landlord shall repair the damage as soon as reasonably possible.
It shall be Tenant's responsibility to repair any damage to Tenant's
fixtures, equipment, or improvements.
(b) If the insurance proceeds received by Landlord are not sufficient
to pay the entire cost of repair, or if the cause of the damage is not
covered by the insurance policies which Landlord maintains under
Paragraph 4.04(b), Landlord may elect either to (i) repair the damage as
soon as reasonably possible, in which case this Lease shall remain in full
force and effect, or (ii) terminate this Lease as of the date the damage
occurred. Landlord shall notify Tenant within thirty (30) days after
receipt of notice of the occurrence of the damage whether Landlord elects to
repair the damage or terminate the Lease. If Landlord elects to repair the
damage, Tenant shall pay Landlord the "deductible amount" (if any) under
Landlord's insurance policies and, if the damage was due to an act or
omission of Tenant, or Tenant's employees, agents, contractors or invitees,
the difference between the actual cost of repair and any insurance proceeds
received by Landlord. If Landlord elects to terminate the Lease, Tenant may
elect to continue this Lease in full force and effect, in which case Tenant
shall repair any damage to the Property and any building in which the
Property is located. Tenant shall pay the cost of such repairs, except that
upon satisfactory completion of such repairs, Landlord shall deliver to
Tenant any insurance proceeds received by Landlord for the damage repaired
by Tenant. Tenant shall give Landlord written notice of such election
within ten (10) business days after receiving Landlord's termination notice.
(c) If any material damage to the Property occurs during the last
twelve (12) months of the Lease Term and such damage will require more than
thirty (30) days to repair, either Landlord or Tenant may elect to terminate
this Lease as of the date the damage occurred, regardless of the sufficiency
of any insurance proceeds. The party electing to terminate this Lease shall
give written notification to the other party of such election within thirty
(30) days after Tenant's notice to Landlord of the occurrence of the damage.
Section 7.02. Substantial or Total Destruction. If the Property is
substantially (i.e., 50% or more) or totally destroyed by any cause
whatsoever (i.e., the damage to the Property is greater than partial damage
as described in Section 7.01), and regardless of whether Landlord receives
any insurance proceeds, this Lease shall terminate as of the date
the destruction occurred. Notwithstanding the preceding sentence, if the
Property can be rebuilt within one hundred eighty (180) days after the date
of destruction, Landlord may elect to rebuild the Property at Landlord's own
expense, in which case this Lease shall remain in full force and effect.
Landlord shall notify Tenant of such election within thirty (30) days after
Tenant's notice of the occurrence of total or substantial destruction. If
Landlord so elects, Landlord shall rebuild the Property at Landlord's sole
expense, except that if the destruction was caused solely by an act or
omission of Tenant, Tenant shall pay Landlord the difference between the
actual cost of rebuilding and any insurance proceeds received by Landlord.
Notwithstanding anything to the contrary contained in this Article Seven,
Tenant may, by written notice to Landlord, elect to cancel this Lease with
respect to any material casualty not reasonably repairable within one
hundred eighty (180) days from the date of the casualty. Such cancellation
notice must be given to Landlord within ten (10) business days after
Landlord notifies Tenant of the occurrence of any such event.
Section 7.03. Temporary Reduction of Rent. If the Property is destroyed
or damaged and Landlord or Tenant repairs or restores the Property pursuant
to the provisions of this Article Seven, any rent payable during the period
of such damage, repair and/or restoration shall be reduced according to the
degree, if any, to which Tenant's use of the Property is impaired. However,
the reduction shall be contingent upon Tenant turning over to Landlord the
proceeds of Tenant's business interruption insurance up to the amount of the
rent so abated, provided any such insurance provision in excess of such
abated rent, if any, shall be retained by Tenant, and in no event shall the
reduction exceed the amount of proceeds turned over to Landlord. Except for
such possible reduction in Base Rent, insurance premiums and real property
taxes, Tenant shall not be entitled to any compensation, reduction, or
reimbursement from Landlord as a result of any damage, destruction, repair,
or restoration of or to the Property.
Section 7.04. Waiver. Tenant waives the protection of any statute, code
or judicial decision which grants a tenant the right to terminate a lease in
the event of the substantial or total destruction of the leased property.
Tenant agrees that the provisions of Sections 7.01, 7.02 and 7.03 above
shall govern the rights and obligations of Landlord and Tenant in the event
of any substantial or total destruction to the Property.
ARTICLE EIGHT: CONDEMNATION
If all or any portion of the Property is taken under the power of
eminent domain or sold under the threat of that power (all of which are
called "Condemnation"), this Lease shall terminate as to the part taken or
sold on the date the condemning authority takes title or possession,
whichever occurs first. If more than twenty percent (20%) of the floor area
of the building in which the Property is located, or which is located on the
Property, is taken, either Landlord or Tenant may terminate this Lease as of
the date the condemning authority takes title or possession, by delivering
written notice to the other within ten (10) days after receipt of written
notice of such taking (or in the absence of such notice, within ten (10)
days after the condemning authority takes title or possession). If neither
Landlord nor Tenant terminates this Lease, this Lease shall remain in effect
as to the portion of the Property not taken, except that the Base Rent and
Additional Rent shall be reduced in proportion to the reduction in the
floor area of the Property. Any Condemnation award or payment shall be
distributed in the following order: (a) first, to any ground lessor,
mortgagee or beneficiary under a deed of trust encumbering the Property, the
amount of its interest in the Property; (b) second, to Tenant, only the
amount of any award specifically designated for loss of or damage to
Tenant's trade fixtures or removable personal property; and (c) third, to
Landlord, the remainder of such award, whether as compensation for reduction
in the value of the leasehold, the taking of the fee, or otherwise. If this
Lease is not terminated, Landlord shall repair any damage to the Property
caused by the Condemnation, except that Landlord shall not be obligated to
repair any damage for which Tenant has been reimbursed by the condemning
authority. If the severance damages received by Landlord are not sufficient
to pay for such repair, Landlord shall have the right to either terminate
this Lease or make such repair at Landlord's expense.
ARTICLE NINE: ASSIGNMENT AND SUBLETTING
Section 9.01. Landlord's Consent Required. No portion of the Property or
of Tenant's interest in this Lease may be acquired by any other person or
entity, whether by sale, assignment, mortgage, sublease, transfer, operation
of law, or act of Tenant, without Landlord's prior written consent, except
as provided in Section 9.02 below. Landlord has the right to grant or
withhold its consent as provided in Section 9.05 below. Any attempted
transfer without consent shall be void and shall constitute a non-curable
breach of this Lease. If Tenant is a corporation, any change in the
ownership of a controlling interest of the voting stock of the corporation
shall require Landlord's consent, which consent shall not be unreasonably
withheld, conditioned or delayed. The preceding sentence shall not be
applicable so long as the shares of stock of Tenant are traded on a
nationally recognized public exchange, and any exchange of Tenant's shares
of stock while Tenant is publicly traded shall not be deemed to be a
transfer.
Section 9.02. Tenant Affiliate. Tenant may assign this Lease or sublease
the Property, without Landlord's consent, to any corporation or other entity
which controls, is controlled by or is under common control with Tenant, or
to any corporation or other entity resulting from the merger of or
consolidation with Tenant ("Tenant's Affiliate"). In such case, any
Tenant's Affiliate shall assume in writing all of Tenant's obligations under
this Lease.
Section 9.03. No Release of Tenant. No transfer permitted by this
Article Nine, whether with or without Landlord's consent, shall release
Tenant or change Tenant's primary liability to pay the rent and to perform
all other obligations of Tenant under this Lease. Landlord's acceptance of
rent from any other person is not a waiver of any provision of this Article
Nine. Consent to one transfer is not a consent to any subsequent transfer.
If Tenant's transferee defaults under this Lease, Landlord may proceed
directly against Tenant without pursuing remedies against the transferee.
Landlord may consent to subsequent assignments or modifications of this
Lease by Tenant's transferee, without notifying Tenant or obtaining its
consent. Such action shall not relieve Tenant of its liability under this
Lease.
Section 9.04. Offer to Terminate. If Tenant desires to assign the Lease
or sublease the Property, Tenant shall have the right to offer, in writing,
to terminate the Lease as of a date specified in the offer. If Landlord
elects in writing to accept the offer to terminate within twenty (20)
days after notice of the offer, the Lease shall terminate as of the
date specified and all the terms and provisions of the Lease governing
termination shall apply. If Landlord does not so elect, the Lease shall
continue in effect until otherwise terminated and the provisions of Section
9.05 with respect to any proposed transfer shall continue to apply.
Section 9.05. Landlord's Consent.
(a) Tenant's request for consent to any transfer described in
Section 9.01 shall set forth in writing the details of the proposed
transfer, including the name, business and financial condition of the
prospective transferee, financial details of the proposed transfer (e.g.,
the term of and the rent and security deposit payable under any proposed
assignment or sublease), and any other information Landlord deems reasonably
relevant. Landlord shall have the right to withhold consent, if reasonable,
or to grant consent, based on the following factors: (i) the business of
the proposed assignee or subtenant and the proposed use of the Property;
(ii) the net worth and financial reputation of the proposed assignee or
subtenant; (iii) Tenant's compliance with all of its obligations under the
Lease; and (iv) such other factors as Landlord may reasonably deem relevant.
If Landlord objects to a proposed assignment solely because of the net worth
and/or financial reputation of the proposed assignee, Tenant may nonetheless
sublease (but not assign), all or a portion of the Property to the proposed
transferee, but only on the other terms of the proposed transfer.
(b) If Tenant assigns or subleases, the following shall apply:
(i) Tenant shall pay to Landlord as Additional Rent under the Lease the
Landlord's Share (stated in Section 1.13) of the Profit (defined below) on
such transaction as and when received by Tenant, unless Landlord gives
written notice to Tenant and the assignee or subtenant that Landlord's Share
shall be paid by the assignee or subtenant to Landlord directly. The
"Profit" means (A) all amounts paid to Tenant for such assignment or
sublease, including "key" money, monthly rent in excess of the monthly rent
payable under the Lease, and all fees and other consideration paid for the
assignment or sublease, including fees under any collateral agreements, less
(B) costs and expenses directly incurred by Tenant in connection with the
execution and performance of such assignment or sublease for real estate
broker's commissions and costs of renovation or construction of tenant
improvements required under such assignment or sublease. Tenant is entitled
to recover such costs and expenses before Tenant is obligated to pay the
Landlord's Share to Landlord. The Profit in the case of a sublease of less
than all the Property is the rent allocable to the subleased space as a
percentage on a square footage basis; (ii) Tenant shall provide Landlord a
written statement certifying all amounts to be paid from any assignment or
sublease of the Property within thirty (30) days after the transaction
documentation is signed, and Landlord may inspect Tenant's books and records
to verify the accuracy of such statement. On written request, Tenant shall
promptly furnish to Landlord copies of all the transaction documentation,
all of which shall be certified by Tenant to be complete, true and correct.
Landlord's receipt of Landlord's Share shall not be a consent to any further
assignment or subletting. The breach of Tenant's obligation under this
Paragraph 9.05(b) shall be a material default of the Lease.
Section 9.06. No Merger. No merger shall result from Tenant's sublease
of the Property under this Article Nine, Tenant's surrender of this Lease
or the termination of this Lease in any other manner. In any such event,
Landlord may terminate any or all subtenancies or succeed to the interest of
Tenant as sublandlord under any or all subtenancies.
ARTICLE TEN: DEFAULTS; REMEDIES
Section 10.01. Covenants and Conditions. Tenant's performance of each of
Tenant's obligations under this Lease is a condition as well as a covenant.
Tenant's right to continue in possession of the Property is conditioned upon
such performance. Time is of the essence in the performance of all covenants
and conditions.
Section 10.02. Defaults. Tenant shall be in material default under this
Lease:
(a) If Tenant abandons the Property or if Tenant's vacation of the
Property results in the cancellation of any insurance described in
Section 4.04;
(b) If Tenant fails to pay rent or any other charge when due and such
failure shall continue for a period of five (5) days after written notice to
Tenant; provided, however, upon Landlord being required to notice Tenant of
a failure to pay Base Rent pursuant to this Section the third time, no
written notice shall thereafter be required as a condition to Tenant being
in default under this Lease pursuant to this Section;
(c) If Tenant fails to perform any of Tenant's non-monetary obligations
under this Lease for a period of thirty (30) days after written notice from
Landlord; provided that if more than thirty (30) days are required to
complete such performance, Tenant shall not be in default if Tenant
commences such performance within the thirty (30) day period and thereafter
diligently pursues its completion. However, Landlord shall not be required
to give such notice if Tenant's failure to perform constitutes a non-curable
breach of this Lease. The notice required by this Paragraph is intended to
satisfy any and all notice requirements imposed by law on Landlord and is
not in addition to any such requirement.
(d) (i) If Tenant makes a general assignment or general arrangement for
the benefit of creditors; (ii) if a petition for adjudication of bankruptcy
or for reorganization or rearrangement is filed by or against Tenant and is
not dismissed within ninety (90) days; (iii) if a trustee or receiver is
appointed to take possession of substantially all of Tenant's assets located
at the Property or of Tenant's interest in this Lease and possession is not
restored to Tenant within ninety (90) days; or (iv) if substantially all of
Tenant's assets located at the Property or of Tenant's interest in this
Lease is subjected to attachment, execution or other judicial seizure which
is not discharged within ninety (90) days. If a court of competent
jurisdiction determines that any of the acts described in this subparagraph
(d) is not a default under this Lease, and a trustee is appointed to take
possession (or if Tenant remains a debtor in possession) and such trustee or
Tenant transfers Tenant's interest hereunder, then Landlord shall receive,
as Additional Rent, the excess, if any, of the rent (or any other
consideration) paid in connection with such assignment or sublease over the
rent payable by Tenant under this Lease.
Section 10.03. Remedies. On the occurrence of any material default by
Tenant, Landlord may, at any time thereafter, with or without notice or
demand and without limiting Landlord in the exercise of any right or remedy
which Landlord may have:
(a) Terminate Tenant's right to possession of the Property by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Property to Landlord. In such
event, Landlord shall be entitled to recover from Tenant all damages
incurred by Landlord by reason of Tenant's default, including (i) the worth
at the time of the award of the unpaid Base Rent, Additional Rent and other
charges which Landlord had earned at the time of the termination; (ii) the
worth at the time of the award of the amount by which the unpaid Base Rent,
Additional Rent and other charges which Landlord would have earned after
termination until the time of the award exceeds the amount of such rental
loss that Tenant proves Landlord could have reasonably avoided; (iii) the
worth at the time of the award of the amount by which the unpaid Base Rent,
Additional Rent and other charges which Tenant would have paid for the
balance of the Lease Term after the time of award exceeds the amount of such
rental loss that Tenant proves Landlord could have reasonably avoided; and
(iv) any other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant's failure to perform its obligations under the
Lease or which in the ordinary course of things would be likely to result
therefrom, including, but not limited to, any costs or expenses Landlord
incurs in maintaining or preserving the Property after such default, the
cost of recovering possession of the Property, expenses of reletting,
including necessary renovation or alteration of the Property, Landlord's
reasonable attorneys fees incurred in connection therewith, and any real
estate commission paid or payable. As used in subparts (i) and (ii) above,
the "worth at the time of the award" is computed by allowing interest on
unpaid amounts at the rate of fifteen percent (15%) per annum, or such
lesser amount as may then be the maximum lawful rate. As used in subpart
(iii) above, the "worth at the time of the award" is computed by discounting
such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of the award, plus one percent (1%). If Tenant has
abandoned the Property, Landlord shall have the option of (i) retaking
possession of the Property and recovering from Tenant the amount specified
in this Paragraph 10.03(a), or (ii) proceeding under Paragraph 10.03(b);
(b) Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant has abandoned the Property.
In such event, Landlord shall be entitled to enforce all of Landlord's
rights and remedies under this Lease, including the right to recover the
rent as it becomes due;
(c) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state in which the Property is
located.
Section 10.04. Repayment of Unamortized "Free" Rent. If this Lease
provides for a postponement of any monthly rental payments, a period of
"free" rent or other rent concession, such postponed rent or "free" rent is
called the "Abated Rent". Tenant shall be credited with having paid all of
the Abated Rent on the expiration of the Lease Term only if Tenant has
fully, faithfully, and punctually performed all of Tenant's obligations
hereunder, including the payment of all rent (other than the Abated Rent)
and all other monetary obligations and the surrender of the Property in the
physical condition required by this Lease. Tenant acknowledges that its
right to receive credit for the Abated Rent is absolutely conditioned upon
Tenant's full, faithful, and punctual performance of its obligations under
this Lease. If Tenant defaults and does not cure within any applicable grace
period, the unamortized (amortized on a straight line basis over the initial
Term of this Lease) Abated Rent shall immediately become due and payable in
full and this Lease shall be enforced as if there were no such rent
abatement or other rent concession.
Section 10.05. Automatic Termination. Notwithstanding any other term or
provision hereof to the contrary the Lease shall terminate on the occurrence
of any act which affirms the Landlord's intention to terminate the Lease as
provided in Section 10.03 hereof, including the filing of an unlawful
detainer action against Tenant. On such termination, Landlord's damages for
default shall include all costs and fees, including reasonable attorneys'
fees that Landlord incurs in connection with the filing, commencement,
pursuing, and/or defending of any action in any bankruptcy court or other
court with respect to the Lease; the obtaining of relief from any stay in
bankruptcy restraining any action to evict Tenant; or the pursuing of any
action with respect to Landlord's right to possession of the Property. All
such damages suffered (apart from Base Rent and other rent payable
hereunder) shall constitute pecuniary damages which must be reimbursed to
Landlord prior to assumption of the Lease by Tenant or any successor to
Tenant in any bankruptcy or other proceeding.
Section 10.06. Cumulative Remedies. Landlord's exercise of any right or
remedy shall not prevent it from exercising any other right or remedy.
ARTICLE ELEVEN: PROTECTION OF LENDERS
Section 11.01. Subordination. Landlord shall have the right to subordi-
nate this Lease to any ground lease, deed of trust or mortgage encumbering
the Property, any advances made on the security thereof and any renewals,
modifications, consolidations, replacements or extensions thereof, whenever
made or recorded, provided Tenant is afforded reasonable nondisturbance
protection in the lender's form of subordination agreement. Tenant shall
reasonably cooperate with Landlord and any lender which is acquiring a
security interest in the Property or the Lease. Tenant shall execute such
further reasonable documents and assurances as such lender may require,
provided that Tenant's obligations under this Lease shall not be increased
in any material way (the performance of ministerial acts shall not be deemed
material), and Tenant shall not be deprived of its rights under this Lease.
Tenant's right to quiet possession of the Property during the Lease Term
shall not be disturbed if Tenant pays the rent and performs all of Tenant's
obligations under this Lease and is not otherwise in default. If any ground
lessor, beneficiary or mortgagee elects to have this Lease prior to the lien
of its ground lease, deed of trust or mortgage and gives written notice
thereof to Tenant, this Lease shall be deemed prior to such ground lease,
deed of trust or mortgage whether this Lease is dated prior or subsequent to
the date of said ground lease, deed of trust or mortgage or the date of
recording thereof.
Section 11.02. Attornment. If Landlord's interest in the Property is
acquired by any ground lessor, beneficiary under a deed of trust, mortgagee,
or purchaser at a foreclosure sale, Tenant shall attorn to the transferee of
or successor to Landlord's interest in the Property and recognize such
transferee or successor as Landlord under this Lease. Tenant waives the
protection of any statute or rule of law which gives or purports to give
Tenant any right to terminate this Lease or surrender possession of the
Property upon the transfer of Landlord's interest.
Section 11.03. Signing of Documents. Tenant shall sign and deliver any
instrument or documents necessary or appropriate to evidence any such
attornment or subordination or agreement to do so within ten (10) days after
request by Landlord.
Section 11.04. Estoppel Certificates.
(a) Upon Landlord's written request, not more than four (4) times per
year, Tenant shall execute, acknowledge and deliver to Landlord a written
statement certifying: (i) that none of the terms or provisions of this
Lease have been changed (or if they have been changed, stating how they have
been changed); (ii) that this Lease has not been cancelled or terminated;
(iii) the last date of payment of the Base Rent and other charges and the
time period covered by such payment; (iv) that Landlord is not in default
under this Lease (or, if Landlord is claimed to be in default, stating why);
and (v) such other representations or information with respect to Tenant or
the Lease as Landlord may reasonably request or which any prospective
purchaser or encumbrancer of the Property may require. Tenant shall deliver
such statement to Landlord within ten (10) days after Landlord's request.
Landlord may give any such statement by Tenant to any prospective purchaser
or encumbrancer of the Property. Such purchaser or encumbrancer may rely
conclusively upon such statement as true and correct.
(b) If Tenant does not deliver such statement to Landlord within such
ten (10) day period, Landlord, and any prospective purchaser or
encumbrancer, may conclusively presume and rely upon the following facts:
(i) that the terms and provisions of this Lease have not been changed except
as otherwise represented by Landlord; (ii) that this Lease has not been
cancelled or terminated except as otherwise represented by Landlord;
(iii) that not more than one month's Base Rent or other charges have been
paid in advance; and (iv) that Landlord is not in default under the Lease.
In such event, Tenant shall be estopped from denying the truth of such
facts.
Section 11.05. Tenant's Financial Condition. Within ten (10) days after
written request from Landlord, no more than twice per year, Tenant shall
deliver to Landlord such financial statements as Landlord or its lender
shall reasonably require to verify the net worth and financial condition of
Tenant or any assignee or subtenant of Tenant. In the event Tenant's
shares of stock are publicly traded and financial information on Tenant is
generally available to the public, then Tenant may satisfy the foregoing
requirement by delivering to Landlord such financial information as is
available to the public. Tenant represents and warrants to Landlord that
each such financial statement is a true and accurate statement as of the
date of such statement in all material respects. All financial statements
shall be confidential and shall be used only for the purposes set forth in
this Lease, except to the extent the financial statements are available to
the public.
ARTICLE TWELVE: LEGAL COSTS
Section 12.01. Legal Proceedings. If Tenant or Landlord shall be in
breach or default under this Lease, such party (the "Defaulting Party")
shall reimburse the other party (the "Nondefaulting Party") upon demand for
any costs or expenses that the Nondefaulting Party incurs in connection with
any breach or default of the Defaulting Party under this Lease, whether or
not suit is commenced or judgment entered. Such costs shall include legal
fees and costs incurred for the negotiation of a settlement, enforcement of
rights or otherwise. Furthermore, if any action for breach of or to enforce
the provisions of this Lease is commenced, the court in such action shall
award to the party in whose favor a judgment is entered, a reasonable sum as
attorneys' fees and costs. The losing party in such action shall pay such
attorneys' fees and costs. Tenant shall also indemnify Landlord against and
hold Landlord harmless from all costs, expenses, demands and liability
Landlord may incur if Landlord becomes or is made a party to any claim or
action (a) instituted by Tenant against any third party, or by any third
party against Tenant, or by or against any person holding any interest under
or using the Property by license of or agreement with Tenant; (b) for
foreclosure of any lien for labor or material furnished to or for Tenant or
such other person; (c) otherwise arising out of or resulting from any act or
transaction of Tenant or such other person; or (d) necessary to protect
Landlord's interest under this Lease in a bankruptcy proceeding, or other
proceeding under Title 11 of the United States Code, as amended. Tenant
shall defend Landlord against any such claim or action at Tenant's expense
with counsel reasonably acceptable to Landlord or, at Landlord's election,
Tenant shall reimburse Landlord for any legal fees or costs Landlord incurs
in any such claim or action.
Section 12.02. Landlord's Consent. Tenant shall pay Landlord's
reasonable attorneys' fees incurred in connection with Tenant's request for
Landlord's consent under Article Nine (Assignment and Subletting), or in
connection with any other act which Tenant proposes to do and which requires
Landlord's consent.
ARTICLE THIRTEEN: MISCELLANEOUS PROVISIONS
Section 13.01. Non-Discrimination. Tenant promises, and it is a
condition to the continuance of this Lease, that there will be no
discrimination against, or segregation of, any person or group of persons
on the basis of race, color, sex, creed, national origin or ancestry in the
leasing, subleasing, transferring, occupancy, tenure or use of the Property
or any portion thereof.
Section 13.02. Landlord's Liability; Certain Duties.
(a) As used in this Lease, the term "Landlord" means only the current
owner or owners of the fee title to the Property or the leasehold estate
under a ground lease of the Property at the time in question. Each Landlord
is obligated to perform the obligations of Landlord under this Lease only
during the time such Landlord owns such interest or title. Any Landlord who
transfers its title or interest is relieved of all liability with respect to
the obligations of Landlord under this Lease to be performed on or after the
date of transfer. However, each Landlord shall deliver to its transferee
all funds that Tenant previously paid if such funds have not yet been
applied under the terms of this Lease.
(b) Tenant shall give written notice of any failure by Landlord to
perform any of its obligations under this Lease to Landlord and to any
ground lessor, mortgagee or beneficiary under any deed of trust encumbering
the Property whose name and address have been furnished to Tenant in
writing. Landlord shall not be in default under this Lease unless Landlord
(or such ground lessor, mortgagee or beneficiary) fails to cure such non-
performance within thirty (30) days after receipt of Tenant's notice.
However, if such non-performance reasonably requires more than thirty (30)
days to cure, Landlord shall not be in default if such cure is commenced
within such thirty (30) day period and thereafter diligently pursued to
completion.
(c) Notwithstanding any term or provision herein to the contrary, the
liability of Landlord for the performance of its duties and obligations
under this Lease is limited to Landlord's interest in the Property, and
neither the Landlord nor its partners, shareholders, officers or other
principals shall have any personal liability under this Lease.
Section 13.03. Severability. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is
illegal or unenforceable shall not cancel or invalidate the remainder of
such provision or this Lease, which shall remain in full force and effect.
Section 13.04. Interpretation. The captions of the Articles or Sections
of this Lease are to assist the parties in reading this Lease and are not a
part of the terms or provisions of this Lease. Whenever required by the
context of this Lease, the singular shall include the plural and the plural
shall include the singular. The masculine, feminine and neuter genders shall
each include the other. In any provision relating to the conduct, acts or
omissions of Tenant, the term "Tenant" shall include Tenant's agents,
employees, contractors, invitees, successors or others using the Property
with Tenant's expressed or implied permission.
Section 13.05. Incorporation of Prior Agreements; Modifications. This
Lease is the only agreement between the parties pertaining to the lease of
the Property and no other agreements are effective. All amendments to this
Lease shall be in writing and signed by all parties. Any other attempted
amendment shall be void.
Section 13.06. Notices. All notices required or permitted under this
Lease shall be in writing and shall be personally delivered or sent by
certified mail, return receipt requested, postage prepaid. Notices to
Tenant shall be delivered to the address specified in Section 1.03 above,
except that upon Tenant's taking possession of the Property, the Property
shall be Tenant's address for notice purposes. Notices to Landlord shall be
delivered to the address specified in Section 1.02 above. All notices shall
be effective upon delivery. Either party may change its notice address upon
written notice to the other party.
Section 13.07. Waivers. All waivers must be in writing and signed by the
waiving party. Landlord's failure to enforce any provision of this Lease or
its acceptance of rent shall not be a waiver and shall not prevent Landlord
from enforcing that provision or any other provision of this Lease in the
future. No statement on a payment check from Tenant or in a letter
accompanying a payment check shall be binding on Landlord, Landlord may,
with or without notice to Tenant negotiate such check without being bound to
the conditions of such statement.
Section 13.08. No Recordation. Tenant shall not record this Lease
without prior written consent from Landlord. However, either Landlord or
Tenant may require that a "Short Form" memorandum of this Lease executed by
both parties be recorded. The party requiring such recording shall pay all
transfer taxes and recording fees.
Section 13.09. Binding Effect; Choice of Law. This Lease binds any party
who legally acquires any rights or interest in this Lease from Landlord or
Tenant. However, Landlord shall have no obligation to Tenant's successor
unless the rights or interests of Tenant's successor are acquired in
accordance with the terms of this Lease. The laws of the state in which the
Property is located shall govern this Lease.
Section 13.10. Corporate Authority; Partnership Authority. If Tenant is
a corporation or limited liability company, each person signing this Lease
on behalf of Tenant represents and warrants that he has full authority to do
so and that this Lease binds the corporation or limited liability company.
Within thirty (30) days after this Lease is signed, Tenant shall deliver to
Landlord a certified copy of a resolution of Tenant's Board of Directors
authorizing the execution of this Lease or other evidence of such authority
reasonably acceptable to Landlord. If Tenant is a partnership, each person
or entity signing this Lease for Tenant represents and warrants that he or
it is a general partner of the partnership, that he or it has full authority
to sign for the partnership and that this Lease binds the partnership and
all general partners of the partnership. Tenant shall give written notice
to Landlord of any general partner's withdrawal or addition. Within thirty
(30) days after this Lease is signed, Tenant shall deliver to Landlord a
copy of Tenant's recorded statement of partnership or certificate of limited
partnership.
Section 13.11. Force Majeure. If Landlord or Tenant cannot perform any
of its obligations due to events beyond Landlord's or Tenant's control, the
time provided for performing such obligations shall be extended by a period
of time equal to the duration of such events. Events beyond Landlord's or
Tenant's control include, but are not limited to, acts of God, war, civil
commotion, labor disputes, strikes, fire, flood or other casualty, shortages
of labor or material, government regulation or restriction and weather
conditions. Financial inability is not a force majeure event.
Section 13.12. Execution of Lease. This Lease may be executed in
counterparts and, when all counterpart documents are executed, the counter-
parts shall constitute a single binding instrument. Landlord's delivery of
this Lease to Tenant shall not be deemed to be an offer to lease and shall
not be binding upon either party until executed and delivered by both
parties.
Section 13.13. Survival. All representations and warranties of
Landlord and Tenant shall survive the termination of this Lease.
ARTICLE FOURTEEN: BROKERS
When this Lease is signed by and delivered to both Landlord and Tenant,
Landlord shall pay a real estate commission to Landlord's Broker named in
Section 1.08 above as provided in the written agreement between Landlord and
Landlord's Broker, and to Tenant's Broker named in Section 1.08 above as
provided in the written agreement between Landlord and Tenant's Broker.
Landlord and Tenant each warrant that they have dealt with no other
real estate broker(s) in connection with this transaction except Landlord's
Broker, who represents Landlord, and Tenant's Broker, who represents Tenant.
Landlord and Tenant have signed this Lease at the place and on the
dates specified adjacent to their signatures below and have initialed all
Riders which are attached to or incorporated by reference in this Lease.
"LANDLORD"
Signed on _____________________, 2003 MAINTENANCE WAREHOUSE/AMERICA CORP.,
a Texas corporation
at __________________________________
By:
_____________________________________
Its:
_____________________________________
"TENANT"
Signed on February 28, 2003 XXXXXXXXXX LABORATORIES, INC.,
a Texas corporation
at _________________________________
By: /s Xxxxxxx X. Xxxxxx
Its: President & CEO
By:
__________________________________
Its:
__________________________________
IN ANY REAL ESTATE TRANSACTION, IT IS RECOMMENDED THAT YOU CONSULT
WITH A PROFESSIONAL, SUCH AS A CIVIL ENGINEER, INDUSTRIAL HYGIENIST
OR OTHER PERSON WITH EXPERIENCE IN EVALUATING THE CONDITION OF THE
PROPERTY, INCLUDING THE POSSIBLE PRESENCE OF ASBESTOS, HAZARDOUS
MATERIALS AND UNDERGROUND STORAGE TANKS
ADDENDUM TO LEASE
This Addendum to Lease ("Addendum") is made in order to supplement that
certain INDUSTRIAL REAL ESTATE LEASE (SINGLE-TENANT FACILITY) ("Lease"),
dated February 21, 2003, by and between Maintenance Warehouse/America Corp.,
a Texas corporation ("Landlord") and Xxxxxxxxxx Laboratories, Inc., a Texas
corporation ("Tenant"). Landlord and Tenant agree that, notwithstanding
anything contained in the Lease to the contrary, the provisions set forth in
this Addendum will be deemed to be a part of the Lease and in the event of
any conflict or inconsistency between the Lease and this Addendum, the
provisions of this Addendum shall supercede and control. Any capitalized
terms used herein shall have the same meaning as provided in the Lease
except as expressly provided in this Addendum. The paragraph numbers below
under numbered consecutively with those in the Lease.
15.Renewal Options.
A. Option to Extend Term. Landlord grants to Tenant two (2) option(s) (the
"Option") to extend the Lease Term for an additional term of five (5) years
each (the "Extension"), on the same terms, conditions and covenants set
forth in this Lease, except as provided below. Each Option may be exercised
only by written notice delivered to the Landlord no earlier than three
hundred sixty-five (365) days before, and no later than one hundred eighty
(180) days before, the expiration of the Lease Term or the preceding
Extension of the Lease Term, whichever is applicable. If Tenant fails to
deliver Landlord written notice of the exercise of an Option within the
prescribed time period, such Option and any succeeding Options shall lapse,
and there shall be no further right to extend the Lease Term. Each Option
may only be exercised by Tenant on the express condition that, at the time
of the exercise, Tenant is not in default under any of the provisions of
this Lease beyond any applicable notice and cure period. The foregoing
Options are personal to Tenant and may not be exercised by an assignee
(except an assignee who is a Tenant Affiliate pursuant to Section 9.02 of
the Lease) or subtenant without Landlord's written consent.
B. Calculation of Rent. The Base Rent during the Extension(s) shall be
determined by one of the following methods [check one]:
1. Consumer Price Index Adjustment. The monthly Base Rent during the
Extension shall be determined by multiplying the monthly installment of Base
Rent during the last month of the Lease Term by a fraction determined as
follows:
a. The numerator shall be the Latest Index which means either
[check one]:
(1) the Index published for the nearest calendar month
preceding the first day of the Extension, or
(2) the Index for the month of________________________
preceding the Extension.
b. The denominator shall be the Initial Index which means either
[check one]:
(1) the Index published for the nearest calendar month
preceding the Commencement Date, or
(2) the Index for the month of preceding the Commencement Date.
[If no blanks are filled in above, the choice (1) including the phrase, "the
nearest calendar month preceding," shall apply.]
c. The Index means the Consumer Price Index (CPI) for All Urban
Consumers (All Items) U.S. City Average (unless this box is checked in
which case the CPI for the Dallas/Fort Worth Consolidated Metropolitan
Statistical Area shall be used) published by the U. S. Department of Labor,
Bureau of Labor Statistics (Base Index of 1982-84 =100). If the Index is
discontinued or revised, the new index or computation which replaces the
Index shall be used in order to obtain substantially the same result as
would have been obtained if it had not been discontinued or revised. If
such computation would reduce the Rent for the particular Extension, it
shall be disregarded, and the Rent during the immediately preceding period
shall apply instead.
2. Fair Market Rental Value. The Base Rent during each Extension shall
be the Fair Market Rental determined as follows:
a. The "Fair Market Rental" of the Property means the price that a
ready and willing tenant would pay as of the commencement of the Extension
as monthly rent to a ready and willing landlord of demised premises
comparable to the Property if the property were exposed for lease on the
open market for a reasonable period of time, and taking into account the
term of the Extension, the amount of improvements made by Tenant at its
expense, the creditworthiness of the Tenant, and all of the purposes for
which the property may be used and not just the use proposed to be made of
the Property by Tenant. Upon proper written notice by Tenant to Landlord of
Tenant's election to exercise the renewal Option, Landlord shall within
fifteen (15) days thereafter notify Tenant in writing of Landlord's proposed
Fair Market Rental amount and Tenant shall thereupon notify Landlord of
Tenant's acceptance or rejection of Landlord's proposed amount. Failure of
Tenant to reject Landlord's Fair Market Rental amount within fifteen (15)
days after receipt of Landlord's notice shall be deemed Tenant's acceptance
of Landlord's proposed Fair Market Rental amount.
b. If Landlord and Tenant have not been able to agree on the Fair
Market Rental amount prior to the date the option is required to be
exercised, the rent for the Extension shall be determined as follows:
Within thirty (30) days following the exercise of the option, Landlord and
Tenant shall endeavor in good faith to agree upon a single Appraiser
(defined below). If Landlord and Tenant are unable to agree upon a single
Appraiser within the thirty day period, each shall then appoint one
Appraiser by written notice to the other, given within ten (10) days after
the thirty day period. Within ten (10) days after the two Appraisers are
appointed, the two Appraisers shall appoint a third Appraiser. If either
Landlord or Tenant fails to appoint its Appraiser within the prescribed time
period the single Appraiser appointed shall determine the Fair Market Rental
amount of the Property. Each party shall bear the cost of the appraiser
appointed by it and the parties shall share equally the cost of the third
appraiser. The term "Appraiser" means a State Certified Real Estate
Appraiser licensed by the State of Texas to value commercial property.
c. The Fair Market Rental Value of the Property shall be the average
of two of the three appraisals which are closest in amount as described
below, and the third appraisal shall be disregarded. In no event shall the
Rent be reduced by reason of such computation. If the Fair Market Rental is
not determined prior to the commencement of the Extension, then Tenant shall
continue to pay to Landlord the Rent applicable to the Property immediately
prior to the Extension until the Fair Market Rental amount is determined,
and when it is determined, Tenant shall pay to Landlord within ten (10) days
after receipt of such notice the difference between the Rent actually paid
by Tenant to Landlord and the new Rent determined under this Lease.
C. Fixed Rental Adjustments. The monthly Base Rent shall be increased
beginning on the following dates to these amounts:
Date: ______________________ Amount: ________________________
Date: ______________________ Amount: ________________________
Date: ______________________ Amount: ________________________
Date: ______________________ Amount: ________________________
16. So long as Tenant is not in default under this Lease beyond any
applicable notice and cure period (and subject to Section 10.04 of this
Lease), Base Rent shall be abated for months two and three of the original
Lease Term.
17. The existing pallet racks in the Building shall be left in place for the
Term (as extended), shall remain Landlord's property, and shall be
surrendered to Landlord upon expiration or earlier termination in the same
condition received, ordinary wear and tear excepted. Notwithstanding the
foregoing, Tenant may, at its sole cost, in a lien-free and good and
workmanlike manner, remove all racks which are less than four (4) feet wide
(that is, not wide enough to support heavy pallets) and store them in a
portion of the warehouse convenient to Tenant and reasonably accessible by
Landlord. Tenant shall repair all damage caused by the removal of such
racks. Within thirty (30) days after request by Tenant, Landlord shall, at
Landlord's sole expense, haul away and dispose of such racks.
18. The "Commencement Date" shall be the date on which the last of Landlord
and Tenant sign this Lease as indicated next to their respective signature
blocks hereon. The original Term shall expire on the last day of the
calendar month which is 62 calendar months after the calendar month in which
the Commencement Date occurs.
